News Analysis: WSJ Lords ruling is a warning bell

A House of Lords ruling means investigative journalists could be emboldened to write damaging stories. Here a lawyer explains the repercussions for PR executives.

It is not every week that the highest court in the land delivers a judgement that seri­ously affects the practical aspects of communications and press office work.

The House of Lords ruling earlier this month in favour of The Wall Street Journal Europe is worth major attention for PR professionals as it is likely to lead to journalists publishing a greater num­ber of damaging stories that they may not be able to stand up.

The law lords accepted the WSJE's argument that its story - published in 2002 - was on a matter of public interest and handled responsibly in the cause of serious investigative journalism, entitling the paper to the Reynolds Defence to a libel action.

The Reynolds Defence is available in libel claims against newspapers and is designed to protect serious, investigative journalists acting in good faith and reporting on matters of public interest (for example, issues of terrorist funding, corruption and financial impropriety - not, say, the shopping habits of a footballer's belle).

Off the hook
The key to Reynolds - which takes its name from a libel action in 2001 between former Irish prime minister Albert Reynolds and Times News­papers, in which the defence was constructed - was that it afforded protection to such journalists when they had carefully scrutinised their sources, checked their facts, put the allegations in detail to the subject of the article and then reported the allegations responsibly and without sensationalism. The effect was that even when a story was untrue and massively damaging to its subject, the publisher could still defend a libel claim.

To this end, the House of Lords came up with a ten-point checklist to give guidance on what constitutes ‘responsible journalism' (see below).

While the Reynolds Defence has been used regularly (if largely unsuccessfully) by newspapers in court, media lawyers have turned it around to successfully provide help to PR professionals facing the threat of newspaper, TV, radio or online publication.

The ten-point test for ‘responsible journalism' provided scope to delay, amend and in some cases stave off
a false or unsubstantiated allegation.

By challenging issues such as the independence of sources, the steps taken to verify the allegations or the status of the allegations (ie. is it gossip or made by a credible body?), PR professionals and their lawyers could often force newspapers to re-evaluate how they intended to prepare an article and when they published it. In many instances - as PR professionals know only too well - buying the client 48 hours was invaluable.

In Jameel vs WSJE, the House of Lords found that the Reynolds test was being applied too strictly. Instead of looking for journalists to tick all ten boxes to prove they had acted responsibly, the court decided that instead the test should be applied more loosely with the ten points being read as general pointers to the publisher's conduct.  The court also decided that when considering the legitimacy of including the defamatory part of the article, courts should not try to second-guess editorial judgement with the benefit of hindsight.

So what are the practical implications of this for PROs? The plea for a journalist to act ‘responsibly' in line with the Reynolds principles should still be made - a 9pm phone call asking for a response to vague allegations is still very unlikely to be termed ‘responsible journalism'.

Licence to publish
But the loosening of the ten-point test into a flexible assessment of what is ‘fair and responsible' will mean that journalists and newspapers are emboldened to carry hard-hitting ­stories on matters of public interest that carry an element of doubt regarding facts.

Increasingly, therefore, it will be up to PROs to use their powers of persuasion to convince an editor that the planned story is untrue: editors will find it harder to argue that their journalism was responsible if they did not (or could not realistically) believe that the allegations were true.

The media have certainly been quick to hail Jameel vs WSJE as a sea-change in ‘freedom of the press' (albeit freedom to make false allegations with ­impunity), but the volume of their reaction may well outstrip the practical effect. The practical advice offered by good media lawyers in the face of a potential media exposé remains to legitimately seek the time and detail to fully res­pond to an allegation, do the groundwork on areas of vulnerability so you can respond quickly to allegations and - particularly where a false allegation is concerned - be prepared to argue your position forcefully.

More Reynolds Defence cases will be heard in the courts in the next year that will give journalists and PROs a better idea of just how flexible the definition of ‘responsible journalism' is.

But for now, PROs need to be prepared to deal with journalists with greater confidence in their ability to get their story past their lawyers.

Chris Scott works for media law firm Schillings, and was a reporter for PRWeek from 2001-2002

THE TEN REYNOLDS POINTS

01. Gravity If the allegation is serious and untrue, the harm is more serious.

02. Of public interest Distinguish between stories in which the public are interested and the real test of public interest - whether the story is properly a matter for public debate.

03. The source Some informants have no direct knowledge of the events; some have an axe to grind, or are being paid for their stories.

04. Verification What steps have been taken to check the truth and reliability of the source and the story?

05. Status The allegation may have already been the subject of an investigation that commands respect. Journalists need to take great care with gossip or innuendo.

06Urgency The urgency of the matter. This must be real and never means their print deadline or desire for a scoop

07Comment Whether comment was sought from the subject.

08Gist Whether the article contained the gist of the subject's story.

09Tone A newspaper can raise queries or call for an investigation. It need not adopt allegations as fact. Is the article sensational or is it neutrally reported?

10The circumstances of the publication This can be used to point out any other reasons why the journalist has not acted responsibly.

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